2014 (1) TMI 1931 - HC - Indian Laws

Seeking grant of anticipatory bail under Section 438 of the Code of Criminal Procedure - no territorial jurisdiction over the offences committed and registered in State of Gujarat - HELD THAT - Full Bench of Patna High Court, in the case of Syed Zafrul Hassan 1986 (1) TMI 382 - PATNA HIGH COURT held that Section 438 of the Code does not permit grant of anticipatory bail by any High Court or any Court of Sessions within the country; where the accused may choose to apprehend arrest and the power vests only in the Court of Sessions or High Court having jurisdiction over the locale of the commission of the offence of which the person is accused. In the case of N.K. Nayar 1985 (3) TMI 317 - BOMBAY HIGH COURT , the Division Bench of the Bombay Court has held that if the arrest is likely to be affected within the jurisdiction beyond High Court, then the concerned person may apply to the High Court for anticipatory bail even if the offence is committed in some other state. However, the Division Bench in the said case while exercising power under Section 438 of the Code, granted anticipatory bail for a period of one month so as to enable the applicants to move appropriate Court. Thus, the Division Bench of this Court has considered the gravity of pre-trial arrest and loss of liberty of an individual if a person is likely to be falsely implicated in any other state. Generally the powers of High Courts in the cases of anticipatory bail are limited to its territorial jurisdiction and the power cannot be usurp by disregarding the principle of territorial jurisdiction which is in the interest of the comity of the Courts. However, temporary relief to protect liberty and to avoid immediate arrest can be given by this Court. The transit bail granted for four weeks so as to enable the applicant to approach appropriate Court in Gujarat, on the terms and conditions imposed in the interim order dated 10th January, 2014, passed by this Court - application disposed off.

Summary

Issues:
Application for anticipatory bail under Section 438 of the Code of Criminal Procedure; Maintainability of the application in Bombay High Court for offences registered in Gujarat; Interpretation of territorial jurisdiction in anticipatory bail cases.

Analysis:
The application for anticipatory bail under Section 438 of the Code of Criminal Procedure was brought before the Bombay High Court concerning offences registered in Gujarat. The Court had provided interim protection to the applicants until the hearing. However, the issue of territorial jurisdiction was raised by the prosecution as the offences were committed and registered in Ahmedabad, Gujarat, falling outside the Bombay High Court's territorial jurisdiction. The defense argued that Section 438 allows individuals to seek relief in any High Court, regardless of where the offence is registered, citing precedents such as Navinchandra N Majithia vs. State of Maharashtra and Jodha Ram vs. The State of Rajasthan.

The Special Public Prosecutor contended that the application was not maintainable in the Bombay High Court due to the offences being in Gujarat. She supported her argument by referring to cases like C. T. Mathew vs. Govt. of India and Neela J. Shah vs. State of Gujarat. The Court examined various judgments, including those from Rajasthan, Kerala, Gujarat, and Patna High Courts, regarding the territorial competence in anticipatory bail cases. The differing views highlighted the complexity of the issue, with some courts emphasizing deciding anticipatory bail applications based on the territorial jurisdiction where the offence occurred.

Considering the precedents and the gravity of pre-trial arrest, the Court in the case of N.K. Nayar granted anticipatory bail for a limited period to enable the applicants to approach the appropriate Court. The Court acknowledged the importance of respecting territorial jurisdiction for the comity of the Courts but also recognized the need to protect individual liberty and prevent immediate arrests. Ultimately, the Court granted transit bail for four weeks to allow the applicant to seek relief in Gujarat, maintaining the conditions imposed in the interim order. The order remained valid until a specified date, providing temporary relief while upholding the principles of territorial jurisdiction in anticipatory bail cases.